Miss Katherine Wood (instructed by Northumberland County Council Legal Services) for the Respondent

Hearing date: 28th March 2017

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JudgmentLady Justice Black:

This case concerns a 4 year old girl, B. She has been the subject of litigation for some time, the last order in relation to her having been made by Bodey J on 19 May 2016 when B's mother's application for leave to oppose her adoption was dismissed. The mother is seeking to appeal against that decision.

Preliminary matter

When the case came before me for consideration of whether permission to appeal should be granted, I concluded that the position was somewhat unclear and therefore made provision for the matter to be listed in front of me and another judge on the basis that the question of permission to appeal would be considered in the light of submissions from all parties and, in the event that permission was given, the full appeal would be heard at the same time. I gave directions to this effect on 15 December 2016 and, at the same time, I gave a judgment setting out the matters that concerned me in relation to Bodey J's decision, in order that the skeleton arguments prepared for the permission to appeal/appeal hearing could address them. It was disappointing to find that the parties do not seem to have taken steps to obtain a copy of my judgment in preparation for the appeal hearing, with the result that it was only during the hearing that significant issues that I had raised in it received attention.

In order to help others in the same situation, it might be worth saying a little more on this topic. When an oral hearing takes place in relation to an application for permission to appeal, as the order that I made on 15 December 2016 showed had happened here, the judge will often give a judgment. Parties involved in the appeal need to ensure that they have sight of that judgment because it will almost certainly assist considerably in indicating the likely focus of any subsequent hearing in relation to the appeal. Judgments given in relation to questions of permission to appeal are routinely transcribed, so copies should be obtainable without difficulty.

CPR Practice Direction 52C dictates that the core bundle for the appeal hearing must contain a transcript of the judgment giving permission to appeal, where permission has been granted. This does not, strictly speaking, cover the instant case as permission was stood over to be determined at the same time as the appeal. However, there is, in fact, just as much need for all parties and the court to have access to the judgment given in these circumstances as in a case in which permission to appeal has been granted. Although the appeal bundle is normally the responsibility of the appellant, in this case, it was the local authority which kindly (and pragmatically) assumed responsibility for preparing it because, as not infrequently happens these days, the mother is acting in person. We are grateful for their efforts in this regard and I should make clear that I acknowledge that the Practice Direction would not have alerted them to the need to obtain a transcript of my judgment when putting the bundle together. I hope, however, that in future the need to do so would be appreciated.

The background up to and including Moylan J's decision in 2014

B has not lived with the mother since June 2013 when the mother agreed to her being accommodated by the local authority under section 20 of the Children Act 1989. Care proceedings were begun by the local authority in March 2014 and the local authority's applications for care and placement orders came before Moylan J in December 2014. Quite a lot of detail about the mother and the background history is to be found in his judgment. It is not necessary to set it all out here and I will confine myself to identifying the central issues that arose and the important elements of the judgment that Moylan J gave explaining why it was that he had decided that both the local authority's applications should be granted.

Moylan J identified the key issues in §6 of his judgment as follows:

``...in my view the key issues are the mother's mental health, as she has been diagnosed as having a borderline personality disorder, and the impact this will have on her ability to care for B. Are the risks of harm to B such as to justify a care order and a placement order, or, as the mother proposes, can she care for B whilst living with her parents? Can they support her and can they sufficiently protect B from any such risks of harm as may be established by the evidence?''

Salient points from the history set out by Moylan J include the following:

i) The mother was adopted when she was six years old, having been physically and emotionally abused whilst in the care of her birth parents.

ii) She had a long history of involvement with psychiatric services, having first been referred to Child and Adolescent Mental Health Services in 2001 with a complex range of difficulties. She had problems at school in 2006 and 2007 and was harming herself.

iii) She was getting into trouble with the police and between 2007 and 2010 was arrested 21 times for a variety of matters.

iv) The history recounted by Moylan J of 2007 to 2011 is of considerable disturbance, including an episode when she was found in the River Tyne saying she was going to kill herself, a period when she ran away from home and slept rough, and an episode during a time of low mood when she said she had taken 24 paracetamol.

v) It was in 2012 that she formed a relationship with B's father and conceived B, the relationship with the father having ended before B was born.

vi) In general, to begin with the mother seems to have cared appropriately for B although some concerns were noted, such as missing medical appointments and being without sterilising tablets because she had run out of money.

vii) In May 2013, however, significant problems developed. She seems to have been receiving support from a friend called SS upon whom she came to rely before realising, she said, that SS had significant mental health problems of her own. The mother was low, and deliberately injured herself by cutting her arm.

viii) Early in June 2013, SS took an overdose. She, SS, reported that she was concerned about the mother who was behaving erratically. The mother herself reported a number of psychological symptoms and, on 5 June 2013, she agreed to B being accommodated by the local authority.

ix) The mother continued to make threats to her own life and to cut herself and in September 2013, the local authority decided that returning B to her care would not be appropriate. A parenting assessment of the mother completed in early 2014 also concluded that she could not safely care for B.

Moylan J had evidence from Dr Tacchi, a consultant psychiatrist, and Dr Cawthorne, a consultant clinical psychologist. Both had assessed the mother. Both were experienced in their field and offered considerable advice about the mother's functioning, how it would affect B, and whether change could be anticipated in the future. Moylan J found their evidence convincing. He accepted, as a result, that the mother had Borderline Personality Disorder, and found that B was at significant risk of emotional harm if she were to be cared for by the mother, even if the mother were living with her parents. The level and nature of the risk of neglectful and emotionally damaging parenting was, he concluded, such as clearly to justify care and placement orders.

In arriving at his conclusion, Moylan J looked at the possibility of things changing in the foreseeable future. He found that the mother neither recognised nor accepted the extent of her problems and that, because she did not accept that she needed it, she was not in a position to benefit from psychotherapy as things stood. He said that ``[w]ithout intervention through psychotherapy, the mother's mental health will remain the same. It is potentially a life long condition and although, absent treatment, the mother might mature out of the disorder it is impossible to give a timescale.''

Moylan J considered whether the support of the maternal grandparents would assist materially. He found them ``perplexing witnesses'' who were unable or unwilling to recognise the true extent of the mother's mental health difficulties and could not provide her with the support that was required to enable B to be cared for by her in a way that would protect B from emotional harm. He agreed with Dr Tacchi that the problems that appeared in the past would be likely to appear again if the mother were to live with her parents with B.

Following Moylan J's judgment

The mother tried unsuccessfully to appeal against Moylan J's decision, permission being refused in June 2015.

In February 2015, the contact that the mother had been having with B came to an end and, in July 2015, B was placed with adopters with whom she has been living ever since. They applied for an adoption order in October 2015 and in due course the mother indicated that she opposed the adoption; this was treated as an application for leave to oppose adoption, and ultimately came before Bodey J.

The mother had become pregnant again. She was informed by the local authority in July 2015 that they intended to issue care proceedings when the child was born. Three weeks later, with the support of her parents, she moved to the Republic of Ireland where she continues to live. In September 2015, she had another daughter, C. She cares for...